Smoke marijuana at home; get fired at work

Friday

Aug 17, 2018 at 12:37 PMAug 19, 2018 at 6:24 AM

Although recreational marijuana is now legal in Massachusetts, workers should not assume it’s any more welcome in the workplace.

Employers across the Bay State have done little to change drug-testing policies in the two years since voters approved recreational marijuana. And absent new legislation, or guidance from the courts, there’s little to suggest much will come.

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“We’re finding employers are taking a wait-and-see attitude,” said Christopher Geehern, executive vice president at Associated Industries of Massachusetts. “We haven’t seen any employers who currently have drug-testing programs decide not to drug test for marijuana.”

Geehern, whose Boston-based association comprises roughly 4,000 businesses of different sizes across the state, said the decision to continue testing for marijuana stems from multiple reasons, including workplace safety concerns, lack of regulatory guidance and the discrepancy between state and federal law.

“A lot of our members are subject to federal law and specific federal regulations,” Geehern added. “Under federal law marijuana is still illegal.”

Employers without federal contracts are also hesitant to roll back drug testing for marijuana, as current testing methods make it difficult to determine whether someone is impaired in that moment, or had smoked a joint two weeks earlier.

Detectable amounts of the drug could show up in urine tests for several days to several weeks after consumption, according to the U.S. Centers for Disease Control and Prevention.

Of course, not all employers require drug testing, but the question of impairment raises safety concerns among businesses and nonprofits with employees who drive, fly and operate heavy or potentially dangerous machinery.

“The commitment to workplace safety has not gone away, so I think companies are loath to turn their backs on testing for marijuana,” Geehern said.

“We’re sort of in the Wild Wild West right now,” Feudo said. “It’s a big change for employers, so they’re all trying to figure it out.”

Earlier this year, the Massachusetts Cannabis Control Commission issued regulations related to recreational marijuana, ultimately leaving the decision to drug test for marijuana up to employers.

“An employer may restrict the consumption of marijuana in the workplace,” the CCC told Wicked Local in June.

Feudo and Geehern don’t expect drug-testing policies at companies to change much until there’s greater regulatory guidance. For medical marijuana, the issue was answered in part by the court system. The Massachusetts Supreme Judicial Court last year ruled medical marijuana patients may file handicap or disability discrimination claims if fired for testing positive for marijuana.

But the decision doesn’t include any guidance for recreational marijuana consumers, which Feudo expects will require legislative action.

“The court will only interpret the law and the law is pretty clear in my view. There’s nothing there that can be interpreted that employers are restricted against taking action against employees who use marijuana,” he explained.

For employees, the rules around drug testing in the workplace are confusing, especially now that recreational marijuana is legal.

“Because it’s legal in Massachusetts, I assumed I was protected by Massachusetts law,” said Bernadette Coughlin, who was fired earlier this year from the food-service company Sodexo after she tested positive for marijuana.

The 55-year-old former manager worked at Holy Family Hospital in Methuen where she fell and broke her wrist and elbow, triggering an automatic drug test in accordance with company policy. Coughlin explained she’d consumed marijuana days earlier during off-work hours and ultimately failed the drug test, which prohibits marijuana. The company subsequently fired her.

Coughlin has since become the face of an effort to lobby legislators to create new laws around the issue. She’s worried the ambiguity could have unintended and potentially dangerous repercussions on the Massachusetts workforce.

“I’m afraid someone will get hurt at work and they won’t report it, or they will lie that they did it someplace else, and end up having injuries that last for a long time, simply because they might have vaped pot,” Coughlin said.

Coughlin has since filed a complaint against Sodexo, seeking a decision through arbitration. In response to a request for comment, the Maryland company -- with operations throughout Massachusetts -- would not address the Coughlin case directly, but said it recognizes marijuana in the workplace is an “evolving legal and social issue.

“As many employers are currently doing, we are evaluating our policies in light of the changing landscape,” Enrico Dinges, a company spokesman, wrote in an email.

Coughlin isn’t the only one eager for greater clarity surrounding the issue. To be fired from a job after failing a drug test can be detrimental to future employment opportunities.

Tom Peacock, a former resident of Westford, had a similar experience to Coughlin. He said he worked for Sodexo for 15 years before he was hurt on the job in 2014. Recreational marijuana was not legal at the time, but he felt ill-informed because it had been decriminalized.

He failed a drug test and was fired, forcing him and his wife to sell their home of 25 years and move to Maine. He’s now opening his own restaurant, but the failed drug test has haunted him and hurt his ability to obtain full-time employment for four years.

“It’s been humiliating, it’s been embarrassing, it’s been financially impossible,” Peacock said. “You don’t just go four years without full-time employment without it having a significant impact on your life.”

Coughlin, meanwhile, is urging all Massachusetts employees to ask their employers for a clear explanation on current drug-testing policies. Asking the question, she added, may end up saving your job.

“Double check. Don’t be like me and assume you’re protected under Massachusetts state law,” she said. “You have to be very careful.”

Eli Sherman is an investigative and in-depth reporter at Wicked Local and GateHouse Media. Email him at esherman@wickedlocal.com, or follow him on Twitter @Eli_Sherman.